Joel Trachtman on The Economic Structure of International Law
Back in 2005 when Jack Goldsmith and Eric Posner published their book, The Limits of International Law, they garnered a lot of attention for promoting the application of rational choice theory to international law (IL), and, equally importantly, suggesting that this method showed IL to have much less influence than conventional wisdom suggested. And the critics and commentators came out of the woodwork. Georgia had a symposium on the book (contributions are listed here); AEI had a panel discussion with a slightly different bent; not to mention the dozens of book reviews written in response.
The reaction might lead one to believe that rational choice theory and IL-proponents are doomed to conflicting positions. Not so, says Joel Trachtman, who has a new book out, The Economic Structure of International Law (Harv. Univ. Press, 2008). Trachtman (a former professor of mine) along with my current colleague Jeff Dunoff were among the first to advocate using economic theory to assess international law. In his current book, Trachtman offers an overarching theoretical model for applying “rational analysis (but not necessarily the assumption that people are rational) and methodological individualism” to international law. He critiques as “stale and equiposed” debates over natural and positive law that many international lawyers still love to have (myself and Mary Ellen O’Connell included, albeit in probably opposing positions). Ultimately, however, Trachtman seeks to offer an optimistic vision of the melding of economic theory with international law:
Economic analysis holds great promise for international law. This promise lies in the ability of economic analysis to suggest useful methods for analyzing the actual or potential consequences of particular legal rules. This approach is consequentialist . . . In determining what the law should be, what else is required than to know what the desired consequences are, and the extent to which the available legal rules achieve these consequences? Of course, we have complex desires. We want both to preserve local prerogatives and to prevent genocide. We want both to promote environmental protection and to increase free trade. We want both predictability and flexibility. Economic analysis cannot tell us how to value these preferences, but it can tell us how to maximize the things we value. . . . Furthermore economic analysis of international law provides an important and interesting conundrum. This work argues that the primary concern in international legal reform is efficiency in the allocation of governmental authority. However, it also recognizes that efficiency in the allocation of governmental authority may be inconsistent with efficiency in the allocation of individual authority; efficiency in the market. So it is important from a political standpoint to recognize that the law and economics of international law may depart from concerns for market efficiency.
Trachtman goes on to suggest that law and economics will eventually learn from international law–the mixing of disciplines will not be a one-way street.
In lieu of citing further blurbs about Trachtman’s work from the publisher, I asked him to address the question that many readers may have — How does this book differ from Goldsmith and Posner’s earlier work? Here’s what he had to say:
I see my book as somewhat different in ambition from Goldsmith and Posner’s. I tried to provide an overarching and coherent framework for understanding the fundamental components of international law: jurisdiction, custom, treaty, organizations, and dispute settlement. I think that GP addressed a number of narrower issues, utilizing somewhat narrow methods. I also think that their positions on treaty and custom, which make up the core of their book, are downright wrong. My chapters on treaty and custom use more well-accepted methods, decline to make empirical assumptions that are hard to defend, and suggest that these types of international law may indeed have binding force. My chapter on jurisdiction sets forth a unique, and elegant, framework by which to understand international legal transactions. I tried to set forth a coherent theoretical framework by which to understand international law, and explain at a number of points what types of empirical research might help to expand our understanding of the causes and effects of international law. I would like to see my book as a further and consolidating step on the path, pioneered by legal scholars including Abbott, Dunoff, Goldsmith, Guzman, Posner, Slaughter, and Sykes, and me, as well as a number of political scientists and a growing number of economists, toward a social scientific understanding of international law. I would consider it a success if it assists other scholars to develop further theoretical and empirical analysis that illuminates our understanding of international law, and if it allows us to recognize the power and limitations of other theoretical approaches.
I’m still working my way through the book, and am looking forward to contrasting my own mostly, positivist leanings with Trachtman’s coverage of issues near and dear to me like treaties (covered in Chapter 4) and the challenges/opportunities of fragmentation to the international legal system (covered in Chapter 7). Other readers may take greater interest in his discussion of custom (Chapter 3), international organizations (Chapter 5), and international dispute resolution (Chapter 7). I hope to have more substantive reactions once I’ve finished reading, but would welcome other reactions from those who have already read this important work in the interim.